The Futile Forgiveness: Basing Deportation on an Expunged Narcotics Conviction

Deportation may work severe hardship, causing a complete break of established social and economic ties. This fact has led to a doctrine of judicial leniency towards aliens ordered to be deported; the deportation statutes are to be strictly construed and all doubts as to their construction are to be resolved in favor of the alien.' While recognizing the continuing existence of this doctrine, the Ninth Circuit Court of Appeals in GarciaGonzales v. Immigration & Naturalization Serv.2 and Kelly v. Immigration & Naturalization Serv.3 recently upheld deportation orders based upon state narcotics possession convictions, despite the fact that the aliens involved had received the benefit of the California "expungement" statute. 4 That statute purports to release an offender who has successfully completed a probationary period from the "penalties and disabilities of his conviction." The alien in Kelly v. Immigration & Naturalization Serv., who had lived in the United States for twelve years, was a first offender; he was convicted of illegal possession of marihuana. The Garcia-Gonzales alien was a fifty-one year old woman, a resident of the United States for over forty years, who was described by the court as a "self-respecting, self-supporting member of the communities in which she has lived." 1 The decisions are harsh under the circumstances. This Comment will discuss the question whether the court was correct in its refusal to reverse the deportation orders in light of the California expungement and consider whether the present deportation statutes reflect sound policy judgment. The federal statute upon which the deportations were based is section 241(a) (11) of the Immigration and Nationality Act of 1952,6 which provides that "any alien in the United States . . . shall, upon the order of the Attorney General, be deported who . . . at any time has been convicted of a violation of . . . any law or regulation [dealing with illegal narcotics activities] . . . ." Against their orders of deportation the aliens Kelly and Garcia-Gonzales set up as a defense the expungement of